Chief Justice Frank Clarke Discusses Court Reform

In a seminar hosted in NUI Galway on 17th January, Chief Justice Frank Clarke addressed the topic of reforming the court system. In the speech, Chief Justice Clarke remarked that the approach to reforming the courts had been ‘overly piecemeal’, where in the past reformers had often looked to solve individual problems rather than improve the system as a whole.

Mr Justice Clarke firstly identified judicial training as an area in strong need of reform. He said that the current estimated budget for judicial training was €300,000, which would need to be ‘quadrupled’ in order for a proper training programme to be implemented. In fact, according to the Chief Justice, the cutbacks in budget had forced Irish judges to travel to Scotland in order to receive proper training; he commented ‘Scotland, a jurisdiction broadly of our own size and with a similar financial clout, had a much more sophisticated system of training than anything we could offer, requiring Irish judges to obtain much of their training abroad,’. He also expressed some puzzlement over the appointment system in the District and Circuits Courts, primarily in how the government makes the appointment rather than the president of the relevant court.

Mr Justice Clarke also focused on the appeals system as another structural problem within the courts. The Chief Justice determined the many different types of review to be the underlying cause of the appeals system’s slow processes. He in fact himself stated that the large amount of different procedures potentially made the system ‘unnecessarily complex and wieldy’. Clarke then went on to recommend that the Law Reform Commission should find some way to streamline applications and should also examine how tribunals make statutory appeals to the court system. The Court of Appeal has recently come under strain due to an increasingly burdensome number of case applications. Mr Justice Clarke even suggested last December allowing four Supreme Court judges to sit in with the Court of Appeal’s judiciary to reduce backlog.

Another area Mr Justice Clarke called attention to in his speech was the need for increased judicial and quasi-judicial resources. He stated that ‘the public might well be surprised to learn how little a judge assigned to hear a case in very many parts of our system will know about the case in advance’, before outlining how the Courts Office actually holds little documentation upon certain cases. He observed that some judges who presided over specific jurisdictions seemingly had more time to consider the cases before them. He used the example of the Commercial Court, which in his view not only had fewer cases than the High Court, but also frequently gave its judges a day prior to the actual case to read upon matters likely to surface during proceedings. However, Clarke also qualified that this greater judicial involvement would only be possible if more resources were available. He commented that ‘time means not just time sitting in court but time reading into the issues in advance so as to reduce the amount of court time taken up’. The Chief Justice also suggested that one quick solution to this would be to employ some senior and legally qualified court officials in order to reduce pre-trial work. He outlined that the High Court currently has 40 judges but only one master and a few deputy masters to assist them. In contrast, the Northern Ireland High Court has six masters to assist its 10 judges. Clarke stressed that these masters would be largely responsible for pre-trial work and would have little input into the final decision.

Similarly, the Chief Justice also discussed how little use was made of the research teams available to the judiciary. In keeping with the common theme of his speech, he emphasised that for true reform to take place, there had to be more effective use of these research teams in order to have a well-functioning court service. Clarke noted that in Ireland’s Supreme Court, one judge would often have to share one researcher with another judge. Meanwhile in other jurisdictions of similar size, a single Supreme Court judge could have two or three assistants assigned specifically to them. Clarke recommended that the number of researchers available to the High Court be increased. He listed reading documentation and correlating uncontroversial evidence, as some examples of activities that researchers could help with.

Mr Justice Clarke repeatedly asserted that there were no ‘magic bullet’ which would instantly solve the problems in the court structure. He emphasised ‘No one ‘big idea’ is likely to provide a courts system with which everyone will be entirely happy.’ But the Chief Justice also stressed that it was important to focus on areas which were in need of reform. In his opinion, this would incite debate which would lead to actual reforms begin implemented. But the real problem Clarke said, lies in the details, the exact lines along which new structures will be drawn. He did suggest that the simplest solution was to integrate already existing resources to an even greater degree. This would lead to swift and significant changes.

Court reform has become an increasingly important matter in the last few years. The Judicial Council Bill and the Judicial Appointment Commission Bill were launched in the Dail last summer. At the time of writing these have yet to be implemented. Further back then that there was the Assisted Decision-Making (Capacity) Act 2015 which overturned the old ward of a court system, and the establishment of the Court of Appeal following the 33rd Referendum. It appears wide changes are slowly growing more and more likely. As of yet, it is uncertain if it will be to the degree Mr Justice Clarke requires. But the courts systems must function efficiently in order to properly deliver justice, and while solutions may remain elusive, debate would certainly be the first step towards improving the system.